Paternalism

Paternalism, attitude and practice that are commonly, though not exclusively, understood as an infringement on the personal freedom and autonomy of a person (or class of persons) with a beneficent or protective intent. Paternalism generally involves competing claims between individual liberty and authoritativesocial control. Questions concerning paternalism also may include both the claims of individual rights and social protections and the legal and socially legitimated means of satisfying those claims. The discursive use of the term paternalism is almost exclusively negative, employed to diminish specific policies or practices by presenting them in opposition to individual freedom.

History of paternalism

The term paternalism first appeared in the late 19th century as an implied critiquepredicated on the inherent value of personal liberty and autonomy, positions elegantly outlined by Immanuel Kant in 1785 and John Stuart Mill in 1859. The etymology of paternalism, rooted in the Latin pater (“father”), reflects the implicit social hierarchies of patriarchal cultures, in which fathers or male heads of families were understood to be authority figures responsible for the welfare of subordinates and dependents. In this tradition, adult members of states, corporations, and communities functioned under the presumably benevolent authority of kings, presidents, and executives. Prior to industrialization, patronage systems informed the stratified economic, political, and social arrangements prevalent throughout Europe and the Americas. Paternalism, as it evolved through the industrial age of the 19th and 20th centuries, applied the model of family relations and practices of patronage (fatherly protection, tutelage, and control) to relationships between classes of people understood as unequal: employers and workers, the privileged and the underprivileged, the state and the masses.

Historically, then, paternalism is a critical term applied in the West to the system of beliefs and practices emerging in the transition from a social order of patriarchal class structures, including slavery in the United States, to a free society of autonomous and equal individuals. Although it is not defined by a single institution or set of institutions, paternalism was prevalent among the early industrial companies. For example, the efforts of the Ford Motor Company’s Sociological Department to promote clean and sober lifestyles included monitoring employee bank accounts, church attendance, and family life—measures that are now considered extremely intrusive but that were not uncommon in a time when labourers were largely employed by people whose wealth, education, and social privilege far exceeded their own. In the United States the ongoing debate between social reformists and free-market advocates shifted from the political and economic integration of former slaves in the late 19th century to a broader concern in the 20th century with the rights of workers, the poor, children, and other marginalized groups such as criminals, the mentally ill, and people with disabilities.

Following several decades of relative silence about paternalism in the mid-20th century, the term was reintroduced, in the context of criminal law, to become a topic of extensive philosophical debate with the 1971 publication of philosopher Gerald Dworkin’s article on the subject in the book Morality and the Law. As the discourse of paternalism evolved, its meaning became more nuanced. Responding to what he considered intrusively interventionist policy and program changes affecting the poor (e.g., welfare, child support, homelessness), Lawrence Mead defined the “new” paternalism as “social policies aimed at the poor that attempt to reduce poverty and other social problems by directive and supervisory means.” From a different perspective, free-market advocates apply their long-standing opposition to paternalism by championing social policies that emphasize the freedom of individual citizens rather than dependence on government or employers in planning and paying for their own health care, college education, and retirement. Guy Standing argued against supervision of the poor as the means of ensuring their economic security, echoing Mead but insisting that the human need for (and right to) collective agency and guaranteed “structured reciprocities” of mutual responsibility between citizen stakeholders and their government cannot be dismissed as paternalism.

Dworkin in a 1972 paper identified paternalism as “the interference with a person’s liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced.” To be considered paternalistic in Dworkin’s analysis, an action should (1) limit a subject’s freedom, (2) be performed without the subject’s consent, and (3) be performed with a beneficial intent. John Kleinig elucidated Dworkin with the observation that incentives may effectively replace coercion as a mechanism of social control. And Allen Buchanan added that deception is an effective but noncoercive means of interfering with a person’s freedom.

In establishing the basic theoretical framework of paternalism based on the conditions and justifications for restricting freedom and autonomy, Dworkin differentiated among various types of paternalism as hard or soft, broad or narrow, weak or strong, pure or impure, and moral or welfare. Primarily concerned with the safety and welfare of the person, an advocate of hard paternalism would permit restrictions of liberty to prevent suicide or grave personal harm even when a person in question is fully cognizant of his actions and their consequences. In contrast, an advocate of soft paternalism would be concerned primarily with the autonomy of the person, justifying the restriction of liberty only to ascertain whether the person in question were indeed choosing to harm or endanger himself with full volition and knowledge of the facts; the soft paternalist would not deny the freedom to inflict self-harm or even death if that were an authentically free and knowledgeable choice.

Similar to soft paternalism, weak paternalism would consider it legitimate to use coercive means to achieve a person’s desired consequence, such as requiring seat belts in the assumption that people desire life and health and therefore should be forced to take measures to protect themselves. Strong paternalism would prevent a person from achieving a desired consequence on the grounds that he may be confused or mistaken about his ends but not if he understands his choice. In such a case, a severely intoxicated person could be prevented from driving if he intends to drive home and is incapable of perceiving his inability to drive safely, but that person could not be prevented from getting intentionally intoxicated to facilitate a fatal car crash.

Broad paternalism would include coercion from any source—including private institutions, families, and individuals—to restrict or control a person’s actions, whereas narrow paternalism would include only coercion by the state.

Pure paternalism would restrict the actions of people who may be harmed by their own behaviour, while impure paternalism would restrict the actions of third parties to protect potential victims. For example, unauthorized consumption of street narcotics is illegal to prevent people from self-endangerment or death—a pure paternalist intervention. An impure paternalist intervention would criminalize the prescription of narcotics by physicians or their production by pharmaceutical companies in order to protect the public.

Finally, moral paternalism is differentiated from welfare paternalism on the basis of the type of good intended for the person whose freedom is being restricted. Local blue laws (laws forbidding certain secular activities on Sunday) were instituted in some communities for the purpose of promoting a moral standard of sobriety, quiet, and church attendance on Sundays, whether or not the individuals in those communities wished to observe Sunday as a religious day or considered engaging in Sunday commerce or drinking to be morally corrupting. Coercive measures imposed to promote the moral good are different from others—such as speed limits for motorists, inoculations for schoolchildren, or architectural design standards in neighbourhoods—that are designed to promote the general welfare of the citizenry.

A decade after the publication of his influential article, Dworkin clarified his original defense of soft paternalism, noting his position that paternalism is sometimes justified in cases where the person in question is demonstrably incompetent or unable to act responsibly in his own self-interest. Critics have charged that this justification blurs the difference between soft and hard paternalism because of the difficulty in establishing universally accepted criteria for determining incompetence, thus creating a “slippery slope” of potential encroachment on personal liberty.

Moral considerations of paternalism

Paternalism raises a cluster of moral questions about the nature of a free society, its obligations to individual members, and the obligations of individuals to themselves, to each other, and to society. A key question concerns the classification of circumstances in which the limitation of individual freedom or autonomy may be properly considered to be paternalistic.

The central moral issue of paternalism is the legitimacy of limiting human freedom and autonomy in a free society of equals where all individuals are accorded respect, autonomy, and freedom by virtue of their humanity. Following Kant and Mill, this moral position derives from the assumption that human beings themselves are best capable of determining and pursuing what is in their own interest; to deny persons this right would be to treat them as instruments of their own good rather than as ends in themselves. Moreover, individuals in a society of political equals are thought to be capable as well of discerning the commonweal and modulating their exercise of personal freedom accordingly. Paternalism denies the full humanity of individuals by failing to respect their capabilities for acting in their own best interest. Moral arguments for paternalism must offer compelling reasons to justify the restriction of freedom and autonomy.

Kant’s objections to paternalism are absolute, with explicit moral prohibitions against lying and force as its chief instruments. Mill distinguished between paternalism in relation to children and to adults: the moral presumption would favour paternalism for a child and prohibit paternalism for an adult. Mill, however, considered paternalism as morally justified among adults to prevent harm to someone who is unaware of an impending danger (e.g., about to cross a bridge without knowledge that it is unsafe). In analyzing normative judgments of paternalism, Dworkin considered two possible normative options: either (1) it is never permitted to limit the freedom of others in an attempt to do good for them against their wishes or (2) it is possible to do so under some circumstances. The first option is often justified on the Kantian grounds that it is impossible to do good by limiting freedom. The second option may be justified on various grounds. Consequentialists may argue that the good done may outweigh the harm caused by loss of autonomy. Others may argue that individual autonomy may be protected in the long run by restricting it in the short run, such as in Mill’s prohibition against willfully contracting oneself into slavery. Moral contractualists may justify paternalism on the ground that, given appropriate knowledge and motivation, all reasonable people would agree to interference in certain circumstances, such as to prevent suicide caused by a temporary state of depression.

Paternalism is sometimes justified on the grounds of preventing harm. Mill’s harm principle, however, justifies interference only in cases in which there would be harm to others; it prohibits interference to prevent self-harm or consensual harms. The harm principle would require toleration of (1) competent self-harm and self-imposed risk, (2) harm to consenting others, and (3) harmless acts. The harm principle could thus be applied to legally prohibit classes of actions intended to harm others (murder, rape, theft, assault) without their consent. The harm principle would also apply in upholding a zone of privacy for consensual or self-regarding acts involving consenting adults and in decriminalizing victimless crimes.

The harm principle justifies restriction of freedom on behalf of others to prevent risk or harm in cases involving children, the mentally incompetent, or those with impaired judgment or faculties because such individuals are considered incapable of authentic consent. Furthermore, the harm principle may also permit consensual or self-paternalism wherein competent individuals or groups choose to impose self-restraining measures, such as living wills or legislative limits, involving future acts.

Although the harm principle may be cited as a justifiable ground for restricting the freedom of individual agents, it leaves unresolved many of its disputed moral questions. For example, even if agreement were to be reached to disallow paternalism intended to prevent self-harm, consensual harm, or harmless acts, reasonable people could conceivably disagree about what constituted self-harm, harm to others, and valid consent. These reasonable disagreements remain contested issues, as illustrated by contemporary debates. The default framing of retirement savings plan options (“opt-in” versus “opt-out” as the default) is viewed by some as a protection of individual choice in the disposal of earned income and by others as a failure to provide proper incentives for individuals to avoid the risk of an impoverished old age. Despite scientific studies, some communities do not regard the risks of secondhand smoke as sufficiently harmful to warrant indoor smoking bans. The debate over assisted suicide illustrates divergence of opinion about suicide as self-harm, its harm to others, and the validity of consent on the part of a person seeking assistance in committing suicide. Young women under the age of 16 are considered capable of consent in contracting a marriage in some jurisdictions, while other jurisdictions consider these same young women incapable of valid consent in seeking birth control or an abortion. In each of these examples, the harm principle is insufficient as a basis for achieving moral consensus.

Joel Feinberg delineated principles for reconciling opposing views regarding permissible grounds for interference with someone’s actions for the sake of preventing harm. First, he established distinctions: self-inflicted harm is still harm; intended self-harm is different from unintended self-harm as a consequence of another intended action; some risks are more reasonable than others; voluntary assumption of risk is a matter of degree. Further, he distinguished between strong legal paternalism, which justifies state protection of people against their will from the harmful consequences of their own voluntary choices, and weak legal paternalism, which prohibits state interference except to protect individuals from self-harm from actions presumed to be nonvoluntary or coerced. Like Dworkin, Feinberg advocated weak paternalism as a means to provide protection for individuals in circumstances where the full exercise of volition may be compromised.

Paternalism applied to social policy

The use of the law to restrict or require actions from people for their own good is known as legal paternalism. Societies may vary in the breadth or manner in which they use the law to restrict the freedom of their constitutive individual or group members, but every society applies some degree of legal paternalism to prohibit acts considered dangerous, risky, or reprehensible. Jeremy Bentham classified laws by their design to (1) protect people from harm caused by others, (2) protect people from harming themselves, and (3) require people to help others. Bentham considered only the first class of laws to be legitimate.

Legal paternalism justifies state coercion to protect individuals from harm, inflicted by either themselves or others, and to give incentives for behaviour that results in what is deemed good by lawmakers and others who bear the responsibility of acting in the public interest. As Feinberg noted, most societies try to find a reasonable balance between extreme paternalism, which infantilizes adults, and an absolute rejection of paternalism, which invalidates even the possibility of coercion as an instrumental means of achieving the good.

In a democratic society of political equals, the duly elected officials and appointed policy makers who constitute the governing structure act as direct or indirect agents serving a citizenry of their peers. In this framework, limitation of individual freedom and autonomy for the sake of the common good is an act of self-governance; such self-imposed or consensual paternalism poses no moral dilemma. On the other hand, political and policy decision making in a complex society rarely involves the participation of the entire citizenry; actual decisions (laws, regulations, professional standards) are often made by a select group of stakeholders with specialized knowledge and privileged access to pertinent information and analysis. Perhaps more accurately referred to as fraternalism rather than paternalism, actions taken on behalf of others in these circumstances exemplify the moral responsibility of the greater knowledge, power, or resources associated with specialized roles in a complex society of equals. For example, a public official closing impassably flooded roads during a hurricane would not be acting paternalistically. A group of legislators, policy analysts, and medical professionals who collaborate to restrict access, through safety or efficacy standards, to a particular drug may be acting beneficently and protectively on behalf of society on the basis of their specialized knowledge; this might be considered an example of weak or welfare paternalism because they are applying, in the public interest, knowledge or expertise not reasonably expected of ordinary citizens. It would be paternalistic if such a group were to withhold accessible and relevant facts or knowledge from the citizenry to intentionally diminish public participation in or awareness of the decision-making process.

Agents of governments, employers, families, professionals, and institutions often apply the harm principle to justify paternalism on the ground that an individual, or a class of individuals, lacks the capability for effective self-management in some essential aspect of life. These concerns are particularly evident in addressing specific areas of social policy and practice involving, for example, people with disabilities, the poor, and the aged. Paternalism can be considered morally appropriate when those whose interests are at stake lack the capacity for self-determination, either temporarily or permanently. When people are dependent on society without evidence of contributory responsibility for their dependent condition, paternalism may be viewed as appropriate. When disability or incapacity is determined justly, paternalism allows able members of society to provide the less able with a quality of life, a level of human dignity, and relief from suffering that they cannot provide for themselves.